Originally Posted by Goaltender66
I'll put it another way.
If I'm walking down Normal and a police officer comes up to me to chat, it's unlikely I'll say anything other than hello and/or "why do you ask?" If he says he "needs" to search my bag I say "I don't consent to a search."
If the situation is such that my consent is unnecessary then the officer will proceed anyway and he should be prepared to justify his actions in court (of course, if this is done as part of a Terry Stop it'll be pretty clear that we've gone past a consensual encounter anyway...).
If my consent is required but he's not saying so, I'm covered if he decides to go ahead and search my bag.
Perhaps there's some clarification that's needed. Is a stop, question, and frisk exercise a Terry Stop by another name?
Yes. I was going to write this the other day but life was keeping me busy.
Where I work we do not call it stop and frisk. We call it a field interview or FI for short. We fill out a card called a field interview card and take your picture. That is if we have the time for it. Usually running your name for warrants or probation/parole status is it.
The most likely time we are going to do it in our city is if you are riding your bicycle with a backpack on in the middle of the night wearing dark clothing and have no reflectors or lights on your bike and you happen to be riding in a residential area where there have been auto burglaries and thefts.
The lack of reflectors or lights is enough for us to stop people and detain them long enough to write a ticket. Now the Terry Decision is enough for us to search for weapons. It is late at night, we are alone on patrol, contacting someone who may be trying to be as invisible as possible so they can commit crimes without detection. If a quick search turns up a screw driver we can easily articulate that is a burglary tool. Now will we charge them for it right then and there? Probably not but it does allow us to start searching their bag or person for something other than a weapon. In this case burglary tools. Since items as small as spark plug ceramic chips can be considered burglary tools we can pretty much search of anything.
The courts have been okay with this for years because they understand there is no DA or judge riding along with the officer in the middle of the night to approve an ever more instrusive search. If judges or DAs wanted to work in the middle of the night they would have become cops instead. So the courts give us discretion to search people given reasonable suspicion or probable cause. They figure if there is a problem with the search it will be discovered in court. And remember for it to get to court the person has to be arrested for something. Also remember this particular scenario involves something that started out as a vehicle code infraction that is a fix it ticket, a $20 fine. If you do not have anything on your person that is illegal expect a $20 ticket. If you have a backpack full of car stereos, iPods, and cellphones that you took out of cars expect at least a night in jail.